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May 1, 2020

Is the United States trying to get back into the Iran Nuclear Deal?

By Samuel M. Hickey

On May 8, 2018, President Donald Trump signed a Presidential Memorandum titled: “Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran’s Malign Influence and Deny Iran All Paths to a Nuclear Weapon.” This Memorandum marked the United States’ official withdrawal from the nuclear deal and initiated the re-imposition of unilateral sanctions on Iran under a doctrine of “Maximum Pressure.” Now, almost two years later, the Trump administration is reportedly preparing a legal memo arguing that the United States remains a “participant state” in the nuclear accord in order to prevent the expiration of a United Nations (UN) arms embargo on Iran linked to the deal. Unsurprisingly, many observers both at home and abroad are objecting to that assertion.

Here’s what you need to know about the Trump Administration’s latest announcement.

Current Status of the Joint Comprehensive Plan of Action with Iran (JCPOA)

Despite the United States’ re-imposition of crippling sanctions in May 2018, Iran remained in compliance with the JCPOA, better known as the Iran nuclear deal, for an entire year. In May 2019, Iran began incrementally stepping back from its obligations under the nuclear deal in 60-day intervals until January 5, 2020, when Iran announced its fifth and final “remedial” step. International nuclear inspectors are still on the ground and Iran has maintained it would restore all of its commitments under the deal, if the United States acts in kind. China, France, Germany, Iran, Russia, the United Kingdom and the European Union have been meeting to resolve Iran’s compliance issues since February 2020, and there is little indication they support the deal’s collapse. On top of that, the United States still sees value in the accord as it keeps extending nuclear waivers allowing Russia, China and the United Kingdom to continue their work to restrain Iran’s nuclear program.

What is happening now?

After months of rising tensions, including the targeted killing of Maj. Gen. Qassem Solemani, ballistic missile attacks by Iran-backed groups that have killed U.S. soldiers, and Iran’s first successful launch of a military satellite, the United States and Iran seemed headed toward a collision of sorts. Given Iran’s continuing regional aggression, the Trump Administration is voicing serious concerns about the lifting of a UN arms embargo on Iran, which is set to expire on October 18, 2020. According to the Congressionally mandated 2019 Defense Intelligence Agency report on Iran Military Power, “Iran is already evaluating and discussing military hardware for purchase primarily from Russia and, to a lesser extent, China.” Russia has rejected extending the UN arms embargo and because China opposes the Trump Administration’s policy on Iran, it likely will, too. In order to regain political leverage, the United States is threatening to unilaterally collapse what is left of the JCPOA if the UN arms embargo is not extended, according to reporting by The New York Times.

What is the UN arms embargo on Iran?

The UN arms embargo on Iran prevents the transfer of certain weapons and technology to Iran unless approved by the United Nations Security Council (UNSC). To date, no transfers have been permitted. Passed to endorse and help implement the agreement reached by the world powers, Resolution 2231 would lift three UNSC Resolutions on Iran in October 2020: the December 2006 partial embargo on the export of technology related to nuclear weapon delivery systems to Iran, including some dual-use technologies for conventional military applications; the March 2007 embargo on arms exports from Iran that also required states to exercise vigilance in any exports moving through their territories; and the June 2010 embargo on the export of most major conventional weapons to Iran.

However, even with the lifting of the UN arms embargo, the UNSC still has mechanisms to prevent Iran from transferring arms to non-state actors. Resolution 2216 imposes an arms embargo on Houthi leaders in Yemen and Resolution 1701 prevents the transfer of arms to non-state actors in Lebanon, which includes Hizballah. While there have been successful interdictions, enforcement of these UNSC resolutions has been difficult with and without Resolution 2231.

How is this related to US participation in the JCPOA?

According to reports, the United States will argue that since there is no formal withdrawal mechanism from the nuclear deal, then the United States did not legally leave the accord. The purpose of this argument is to allow the United States to regain vital leverage to impose UN sanctions on Iran that it lost when it abruptly left the nuclear deal in 2018. Secretary of State Mike Pompeo has drawn a line on the lifting of the UN arms embargo warning, “We’re not going to let that happen.” Pompeo also refused to rule out attempting to trigger the innovative snapback mechanism to collapse the nuclear deal in order to keep the UN arms embargo in place. This could be a legitimate plan or a threat made for political leverage.

The United States is frustrated that other parties to the agreement are not referring current disputes over Iran exceeding the enrichment levels allowed under the nuclear deal over to the UNSC. It is only there that the snapback of multilateral sanctions can take place. Now the Trump Administration is running up against the October 2020 deadline, after which Russia and China would be free to sell Iran advanced fighter aircraft and main battle tanks. That is why the United States wants to now claim it is still a party to the agreement. By leveraging the innovative snapback mechanism in Resolution 2231, the Trump Administration might be able to pass a separate resolution to extend the UN arms embargo and barring that, attempt to collapse the nuclear deal. If Iran is referred to the UNSC, Iran has already warned that this action could lead them to abandon both the JCPOA and the Nuclear Non-Proliferation Treaty (NPT).

What is the “snapback mechanism”?

It is critical to note that the JCPOA and UNSC Resolution 2231 are not one and the same. The drafters of the JCPOA anticipated compliance disputes and included processes within the deal to address them. If any disputes could not be resolved among the parties to the agreement, the dispute could then be referred to the UNSC. However, the drafters envisioned disputes over Iranian, not U.S. compliance with the nuclear deal. (For more, read “A Quick Guide to the JCPOA Dispute Resolution Mechanism.”)

While the JCPOA is a political commitment, Resolution 2231 is binding under international law. It endorses and helps implement the nuclear deal by phasing out previous sanctions on Iran – like the UN arms embargo. UN sanctions were scheduled to be phased out in exchange for Iranian compliance with the nuclear deal, but a major selling point for skeptics of the accord was that these multilateral sanctions could be snapped back at any time during the next 10 years through what has been referred to as a “snapback mechanism.” However, the legality and practicality of the United States’ exercising the snapback mechanism has been an open question since the United States withdrew from the JCPOA in May 2018.

Unilateral U.S. invocation of the snapback mechanism would not only underscore U.S. isolation on the global stage, it might also undermine the effectiveness of the UNSC by creating a dispute over the validity of a UNSC resolution. Such a dispute would give fuel to the fire of North Korean and Iranian assertions that UNSC resolutions against them are unfair and can be ignored. The resulting political dissonance could also give cover for other countries to ignore the re-imposition of UN sanctions and continue trading with Iran as before. Historically, the United States has leveraged the legal and political power of the UNSC to greater effect than any of the other five permanent members. To undermine this structure would be a serious blow to international law and would weaken a valuable tool in the United States’ diplomatic arsenal.

What happens now?

The United States is currently circulating a draft resolution to indefinitely extend the arms embargo on Iran, but presumably Russia will veto this resolution. The United States may be hoping its possible threat to the JCPOA would deter a veto, but that is a major risk. Russia and China will definitely view a move by the United States to refer a JCPOA-related dispute to the UNSC as invalid, due to the fact that President Trump, Secretary Pompeo and Special Assistant for Iran Brian Hook have spent two years claiming that the United States is not a party to the JCPOA. This will likely result in a showdown at the UNSC.